Today's Fresh Start, Inc. v. Los Angeles County Office of Education

Filed 7/11/13
IN THE SUPREME COURT OF CALIFORNIA
TODAY‟S FRESH START, INC., )
)
Plaintiff and Respondent, )
) S195852
v. )
) Ct.App. 2/1 B212966
LOS ANGELES COUNTY OFFICE OF )
EDUCATION et al., ) Los Angeles County
) Super. Ct. No. BS112656
Defendants and Appellants. )
____________________________________)
)
TODAY‟S FRESH START, INC., )
)
Plaintiff and Appellant, )
) Ct.App. 2/1 B214470
v. )
) Los Angeles County
LOS ANGELES COUNTY OFFICE OF ) Super. Ct. No. BS112656
EDUCATION et al., )
)
Defendants and Respondents. )
____________________________________)
Two decades ago, California became one of the first states in the country to
authorize charter schools—public schools funded with public money but run by
private individuals or entities rather than traditional public school districts. The
Charter Schools Act of 1992 (Ed. Code, § 47600 et seq., added by Stats. 1992,
ch. 781, § 1, pp. 3756-3761) authorized various public bodies to approve charters,
supervise charter school operations, and revoke charters in the event particular
1
standards and conditions were not met. But the original law did not specify the
procedures that would accompany a contemplated charter revocation. In 2006, the
Legislature remedied that omission, adopting provisions governing the hearing on,
decision on, and appeal of a charter revocation. (Ed. Code, § 47607, subds. (c)-
(k), as amended by Stats. 2006, ch. 757, § 1, pp. 6012-6014.)1
In response to a writ petition by Today‟s Fresh Start, Inc., an entity
challenging its school‟s charter revocation, we consider whether the procedures
adopted by the Legislature are sufficient under the federal and state due process
clauses. (See U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) The
school contends, inter alia, that it has not been afforded a hearing before an
impartial adjudicator because the body deciding whether to revoke its charter has
an interest in ensuring that funds flowing to charter schools are reallocated to other
public schools. No such interest has been shown here; the school has not
established that the Legislature‟s chosen procedures denied it the opportunity to be
heard “at a meaningful time and in a meaningful manner” (Armstrong v. Manzo
(1965) 380 U.S. 545, 552) by a decision maker without financial or other bias.
Accordingly, we affirm the Court of Appeal‟s judgment denying writ relief and
upholding as constitutional section 47607.
FACTUAL AND PROCEDURAL BACKGROUND
A. Charter Schools
The Legislature is charged with providing a public education system for the
citizens of the State of California. (Cal. Const., art. IX, § 5; California
Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 243.) It has long done
that through the establishment of public school districts (Matosantos, at p. 243)
1 All further unlabeled statutory references are to the Education Code.
2
and, more recently, through charter schools as well (see § 47600 et seq.).2 The
Legislature intended its authorization of charter schools to improve public
education by promoting innovation, choice, accountability, and competition. (See
§ 47601; United Teachers of Los Angeles v. Los Angeles Unified School Dist.
(2012) 54 Cal.4th 504, 521; Wells v. One2One Learning Foundation (2006) 39
Cal.4th 1164, 1186.)
Charter schools are initiated by submitting a petition to the chartering
authority, generally the governing board of a public school district but
occasionally a county board or the State Board of Education. (§ 47605, subds. (a),
(b), 47605.5, 47605.6, 47605.8; United Teachers of Los Angeles v. Los Angeles
Unified School Dist., supra, 54 Cal.4th at pp. 521-522.) Petitions should be
granted whenever they are “consistent with sound educational practice”
(§§ 47605, subd. (b), 47605.6, subd. (b)); a petition can be denied only if a
chartering authority makes written findings that one or more statutory criteria have
not been met (§ 47605, subd. (b); see Wells v. One2One Learning Foundation,
supra, 39 Cal.4th at p. 1186).
Once approved, charter schools are operated independently, but are subject
to public oversight. (California School Bds. Assn. v. State Bd. of Education (2010)
186 Cal.App.4th 1298, 1305; Wilson v. State Bd. of Education (1999) 75
Cal.App.4th 1125, 1137-1142; see §§ 47601, 47615, subd. (a)(2).) Such public
2 When it enacted the Charter Schools Act in 1992, California became only
the second state in the country to authorize such schools, following Minnesota by
one year. (Ridley, Charting a New Course for Public Education in Michigan—
Charter Schools: A Significant Step Toward Meaningful Education Reform (1999)
76 U. Det. Mercy L.Rev. 607, 615.) Charter schools are thus a relatively novel
creation, and the process of identifying the best way to oversee and nurture them is
in its early stages, both here and elsewhere.
3
“control and oversight . . . legitimize[s] charter schools” (California School Bds.
Assn., at p. 1326) and arguably is constitutionally necessary (Mendoza v. State of
California (2007) 149 Cal.App.4th 1034, 1060-1061). Chartering authorities must
monitor schools‟ fiscal condition and academic performance and are authorized to
investigate whenever grounds for concern arise. (§§ 47604.32, 47604.33,
47604.4, 47604.5, 47605, subd. (k), 47607, subd. (a).) In turn, schools must
respond promptly to any reasonable inquiries from public officials charged with
oversight. (§ 47604.3.)
Though independently operated, charter schools fiscally are part of the
public school system; they are eligible equally with other public schools for a
share of state and local education funding. (Wells v. One2One Learning
Foundation, supra, 39 Cal.4th at p. 1186; see §§ 47612, subd. (a), 47615,
subd. (a), 47630 et seq.) This hybrid nature results in a complicated relationship
with other public schools. “Obviously charter schools are not in opposition to the
public school system. On the contrary, they are a part of that system.” (Wilson v.
State Bd. of Education, supra, 75 Cal.App.4th at p. 1139.) Nevertheless, “charter
schools compete with traditional public schools for students, and they receive
funding based on the number of students they recruit and retain at the expense of
the traditional system.” (Wells, at pp. 1203-1204; see Knapp v. Palisades Charter
High School (2007) 146 Cal.App.4th 708, 717.)
Section 47607 specifies the grounds upon and manner in which a school‟s
charter may be revoked. (§ 47607, subds. (c)-(k).) In broad terms, section 47607
requires the chartering authority to provide notice of violations that could lead to
revocation, an opportunity to cure, notice of the intent to revoke if the school fails
to cure, a public hearing, and a written decision with factual findings supporting
any revocation decision. (Id., subds. (d)-(e).) As well, the statute affords schools
an administrative appeals process to contest charter revocation. (Id., subds. (f)-
4
(i).) We discuss these procedures in more detail below; they lie at the heart of this
case.
With this background, we turn to the instant charter revocation dispute.
B. Administrative Proceedings
In 2003, Today‟s Fresh Start, Inc. (Today‟s Fresh Start), a nonprofit public
benefit corporation, petitioned for and was granted a countywide charter to serve
Los Angeles County.3 The Los Angeles County Office of Education (County
Office), a regional educational agency, issued the charter through its governing
board, the Los Angeles County Board of Education (County Board).4 In 2005, the
County Board renewed the charter for a five-year term.
The charter renewal petition stipulated that the County Office would
oversee Today‟s Fresh Start, investigating complaints and monitoring the school‟s
operations. (See § 47607, subd. (a)(1) [chartering authority “may inspect or
observe any part of the charter school at any time”].) Today‟s Fresh Start agreed
to respond promptly to County Office inquiries concerning operational and fiscal
matters. (See § 47604.3; Knapp v. Palisades Charter High School, supra, 146
Cal.App.4th at pp. 714-715 [charter schools are contractually bound by their
charters].) The renewal petition authorized as grounds for revocation “a material
3 Today‟s Fresh Start justified its request for a countywide, as opposed to
districtwide, charter on the ground that in order to provide optimal educational
opportunities for students, it needed to reach beyond individual cities for its
student body.
4 As is typical, Los Angeles has a county board of education, a county
superintendent of education, and a county office of education. (See Cal. Const.,
art. IX, § 7; Ed. Code, §§ 1040-1047, 1240-1281.) The county superintendent is
the head of the county office; the county board is its governing board. The power
to grant or revoke a countywide charter is specifically vested in the county board
(§§ 47605.5, 47605.6, 47607), but the responsibility for oversight is a shared one
(see §§ 47604.3-47604.4).
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violation of any of the conditions, standards, or procedures set forth in this
Petition,” failure to “pursue any of the student outcomes identified in this
Petition,” failure to “meet generally-accepted accounting principles,” “fiscal
mismanagement,” or “[k]nowingly and willfully violat[ing] any provision of
law.”5 The petition also provided that prior to revocation, Today‟s Fresh Start
would receive notice of any violation and an opportunity to cure.
In June 2007, the County Office advised Today‟s Fresh Start that it planned
to investigate concerns raised about the school, including but not limited to four
areas: (1) observance of the legal rights of students, parents, and employees;
(2) student attendance procedures; (3) professional development; and
(4) compliance with California Department of Education testing procedures.
Today‟s Fresh Start responded that the planned investigation violated section
47604.4 and the school‟s charter.6 The next month, the County Office sent
Today‟s Fresh Start a “Report of Findings and Recommendations,” which
identified deficiencies and called for improvements in each of the four identified
areas. A “Corrective Action Plan” spelled out specific actions required of the
school and listed due dates for completion of each.
Contemporaneously, County Superintendent Dr. Darline P. Robles, the
head of the County Office, submitted a request for documents regarding the
5 Section 47607 codifies essentially identical grounds for charter revocation
(see id., subd. (c)), but permits charter revocation for a violation of law whether or
not the violation is knowing or willful (id., subd. (c)(1)(D)).
6 Section 47604.4, subdivision (a) authorizes a county superintendent to,
“based upon written complaints by parents or other information that justifies the
investigation, monitor the operations of a charter school located within that county
and conduct an investigation into the operations of that charter school.” Today‟s
Fresh Start argued that the County Office had not proven it had information
warranting an investigation.
6
governance of Today‟s Fresh Start to determine whether the school was
complying with Corporations Code provisions regulating the operation of
nonprofit public benefit corporations. In August 2007, Superintendent Robles
provided the school with a staff memorandum analyzing the governance materials
sent to the County Office. She wrote: “Staff express serious concerns regarding
the governance of the Today‟s Fresh Start Charter School and I share their
concerns.” Robles requested additional materials to allow the County Office to
determine whether the school‟s board was holding sufficient meetings and
complying with open meeting laws, and whether board members were “protecting
public funds and not using their positions improperly to the end of personal
enrichment.” Superintendent Robles warned that the sufficiency of the school‟s
response would dictate whether she recommended to the County Board that it
initiate charter revocation proceedings.
At an October 9, 2007, County Board meeting, County Office staff member
Dr. Lupe Delgado led a discussion of the staff‟s analysis of the school‟s
governance structure and processes and its response to the Corrective Action Plan.
County Board members were provided three binders of materials reflecting the
staff‟s investigation; these same binders had previously been provided to Today‟s
Fresh Start.
At the County Board‟s October 16 meeting, six individuals addressed the
board on behalf of Today‟s Fresh Start. Thereafter, Superintendent Robles
recommended that the County Board give notice of its intent to revoke the
school‟s charter. The County Board voted five to zero, with two members
abstaining, to approve Superintendent Robles‟s recommendation to begin the
revocation process. A public hearing on Today‟s Fresh Start was scheduled for
the November 6 County Board meeting. The County Office informed Today‟s
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Fresh Start of the board‟s decision and advised the school that it could submit
written materials at any time before the hearing to support its oral presentation.
At the November 6, 2007, public hearing, Today‟s Fresh Start provided the
County Board with handouts detailing the school‟s grounds for opposing
revocation and three binders containing nearly 900 pages of supporting
documentation. Six Today‟s Fresh Start students addressed the County Board in
support of the school. Five individuals, including the school‟s executive director,
Dr. Jeanette Parker, its board chair, Dr. Clark Parker, its legal counsel, Mary Tesh
Glarum, and Assemblyman Mervyn Dymally, offered arguments on behalf of
Today‟s Fresh Start. County Office staff made no presentation.
In writing on November 19, and again at a County Board meeting on
November 20, Today‟s Fresh Start‟s counsel raised concerns that the County
Office‟s revocation procedures violated due process. The school contended the
County Office‟s staff was both advocating that Today‟s Fresh Start‟s charter be
revoked and advising the County Board regarding the revocation, in addition to
having a preexisting relationship with the County Board. At the meeting, the
school objected to not having an opportunity to respond to a County Office staff
presentation listed on the agenda. Drs. Clark and Jeanette Parker again made
appeals on behalf of their school. The staff presentation the school objected to
followed: County Office staff member Dr. Lupe Delgado gave a brief chronology
of the events surrounding the charter revocation process and asked for any specific
items or questions the County Board would like to see addressed in the final staff
report on Today‟s Fresh Start.
At a County Board meeting on December 4, 2007, Dr. Jeanette Parker
again spoke on behalf of Today‟s Fresh Start. Dr. Delgado then presented the
County Office‟s final report, which determined that Today‟s Fresh Start had not
corrected its noncompliance with testing procedures, had not explained how it
8
would rectify irregularities in its governance, and had failed to meet 47 of the 53
items on the Corrective Action Plan. Dr. Delgado concluded: “After review and
analysis of [Today‟s Fresh Start]‟s rebuttal materials and presentations, [the
County Office] stands by its original recommendation that substantial evidence
exists of violations of the charter, failure to meet or pursue pupil outcomes as set
out in the charter, i.e. testing irregularities, and violations of the law. [Today‟s
Fresh Start] has been notified of these violations and has had a reasonable
opportunity to correct [them], and has not done so.” Today‟s Fresh Start promptly
submitted a written response to the report.
At the following week‟s December 11 County Board meeting, six speakers
addressed the County Board on the school‟s behalf. Dr. Jeanette Parker defended
its testing procedures. Today‟s Fresh Start‟s fiscal coordinator assured the County
Board that the school had promptly complied with reporting responsibilities.
Assemblyman Dymally asked the County Board to give the school one more year.
Dr. Clark Parker argued that the revocation process was flawed. Two speakers
emphasized Today‟s Fresh Start‟s performance in comparison to other public
schools.
After further debate, the County Board voted four to three to revoke
Today‟s Fresh Start‟s charter. The County Board adopted factual findings
regarding improprieties in student testing procedures, violations of statutory and
charter provisions regulating corporate governance, and the failure to correct
numerous shortcomings identified in the Corrective Action Plan, all in violation of
section 47607, former subdivision (c)(1), (2), and (4). (Stats. 2006, ch. 757, § 1,
p. 6012, redesignated as subd. (c)(1)(A), (B), and (D) by Stats. 2012, ch. 576, § 3.)
Today‟s Fresh Start appealed its charter revocation to the State Board of
Education (State Board) on grounds, inter alia, that the revocation proceedings
violated due process and revocation was not based on substantial evidence. (See
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§ 47607, subd. (g).) The State Board heard argument from speakers for both
Today‟s Fresh Start and the County Office, considered a report from the Charter
Schools Division of the California Department of Education, and ultimately
affirmed the revocation by an equally divided vote, four to four.
C. Judicial Proceedings
Today‟s Fresh Start challenged its charter revocation by filing a petition for
writ of administrative mandamus. (See Code Civ. Proc., § 1094.5.) In a motion
for judgment under Code of Civil Procedure section 1094, the school sought
reinstatement of the charter on three grounds: (1) the County Board violated
section 47607, subdivision (d) by failing to provide the school with notice and an
opportunity to cure; (2) the County Board deprived the school of due process by
adjudicating the matter when it was not an impartial decision maker; and (3) the
County Office failed to introduce any evidence in support of revocation at the
November 6, 2007, public hearing.
The trial court granted the motion on the last two grounds and issued a writ
setting aside the revocation and remanding to the County Board for further
proceedings. After noting that Today‟s Fresh Start‟s liberty and property interests
in its charter were undisputed, the court concluded the revocation procedure
violated section 47607 and due process. First, both section 47607, subdivision (e)
and due process required that all evidence supporting revocation be introduced at
the public hearing. Second, although Today‟s Fresh Start was statutorily entitled
only to a public hearing before the County Board in the normal course of business
(§ 47607, subd. (e)), the statute was unconstitutional to the extent it afforded less
process than was constitutionally owed. Due process guaranteed Today‟s Fresh
Start an “evidentiary hearing before a[n] unbiased hearing officer”; the County
Board, in the trial court‟s eyes, could not act as an impartial decision maker in the
first instance. Accordingly, on remand, the County Office would have to conduct
10
a separate evidentiary hearing presided over by a neutral third party or County
Office employee uninvolved in the revocation process, with the hearing officer‟s
findings to be thereafter accepted or rejected by the County Board at a subsequent
public hearing.
The Court of Appeal reversed, unanimously rejecting both trial court
grounds for granting relief. First, the County Office was not required to formally
present its evidence so long as it otherwise disclosed the basis for seeking
revocation. Statutorily, nothing in the plain text of section 47607, subdivision (e)
mandated formal presentation; constitutionally, procedural informality was
routinely permitted in administrative proceedings. Second, due process did not
mandate an additional, prehearing hearing because nothing in the school‟s
evidence or argument established that the County Board could not act impartially.
Today‟s Fresh Start was required to demonstrate “ „ “an unacceptable probability
of actual bias” ‟ ” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470,
483); this it had not done. Consequently, there was no reason why the County
Board could not act in the first instance on Today‟s Fresh Start‟s charter
revocation, and the revocation procedures selected by the Legislature (see
§ 47607, subds. (c), (d), (e)) satisfied due process.
We granted review to resolve important questions of first impression
concerning the constitutionality of section 47607‟s charter revocation procedures.
DISCUSSION
I. Due Process Principles
Both the federal and state Constitutions compel the government to afford
persons due process before depriving them of any property interest. (U.S. Const.,
14th Amend. [“nor shall any state deprive any person of life, liberty, or property,
without due process of law”]; Cal. Const., art. I, § 7, subd. (a) [“A person may not
be deprived of life, liberty, or property without due process of law . . . .”].) In
11
light of the virtually identical language of the federal and state guarantees, we
have looked to the United States Supreme Court‟s precedents for guidance in
interpreting the contours of our own due process clause and have treated the state
clause‟s prescriptions as substantially overlapping those of the federal
Constitution. (See, e.g., Morongo Band of Mission Indians v. State Water
Resources Control Bd. (2009) 45 Cal.4th 731, 736-737.)
“The essence of due process is the requirement that „a person in jeopardy of
serious loss [be given] notice of the case against him and opportunity to meet it.‟ ”
(Mathews v. Eldridge (1976) 424 U.S. 319, 348; see Cleveland Board of
Education v. Loudermill (1985) 470 U.S. 532, 546.) The opportunity to be heard
must be afforded “at a meaningful time and in a meaningful manner.” (Armstrong
v. Manzo, supra, 380 U.S. at p. 552; accord, People v. Allen (2008) 44 Cal.4th
843, 869.) To ensure that the opportunity is meaningful, the United States
Supreme Court and this court have identified some aspects of due process as
irreducible minimums. For example, whenever “due process requires a hearing,
the adjudicator must be impartial.” (Haas v. County of San Bernardino (2002) 27
Cal.4th 1017, 1025; see Caperton v. A. T. Massey Coal Co. (2009) 556 U.S. 868,
876; Withrow v. Larkin (1975) 421 U.S. 35, 47.)
Beyond these broad outlines, however, the precise dictates of due process
are flexible and vary according to context. (Mathews v. Eldridge, supra, 424 U.S.
at p. 334 [“ „ “[d]ue process,” unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances‟ ”]; Oberholzer v.
Commission on Judicial Performance (1999) 20 Cal.4th 371, 391 & fn. 16.)
“ „The function of legal process, as that concept is embodied in the Constitution,
and in the realm of factfinding, is to minimize the risk of erroneous decisions.
Because of the broad spectrum of concerns to which the term must apply,
flexibility is necessary to gear the process to the particular need; the quantum and
12
quality of the process due in a particular situation depend upon the need to serve
the purpose of minimizing the risk of error.‟ ” (Heller v. Doe (1993) 509 U.S.
312, 332.) Accordingly, the United States Supreme Court has rejected absolute
rules in favor of balancing three considerations: “First, the private interest that
will be affected by the official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government‟s
interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” (Mathews,
at p. 335; see Turner v. Rogers (2011) 564 U.S. ___, ___ [131 S.Ct. 2507, 2517-
2518]; Wilkinson v. Austin (2005) 545 U.S. 209, 224-225.)
With a minor modification, we have adopted the Mathews balancing test as
the default framework for analyzing challenges to the sufficiency of proceedings
under our own due process clause. The first three factors—the private interest
affected, the risk of erroneous deprivation, and the government‟s interest—are the
same. (See, e.g., California Teachers Assn. v. State of California (1999) 20
Cal.4th 327, 347; In re Sade C. (1996) 13 Cal.4th 952, 986-987.) In addition, we
may also consider a fourth factor, “ „the dignitary interest in informing individuals
of the nature, grounds, and consequences of the action and in enabling them to
present their side of the story before a responsible government official.‟ ” (People
v. Allen, supra, 44 Cal.4th at pp. 862-863; accord, Oberholzer v. Commission on
Judicial Performance, supra, 20 Cal.4th at pp. 390-391.)
As the case in which we announced the additional state factor makes clear,
however, dignitary interests play a role only when the rights of natural persons are
at stake: “The federal approach also undervalues the important due process
interest in recognizing the dignity and worth of the individual by treating him as
an equal, fully participating and responsible member of society. [Citations.] „For
13
government to dispose of a person‟s significant interests without offering him a
chance to be heard is to risk treating him as a nonperson, an object, rather than a
respected, participating citizen.‟ [Citation.] Thus, even in cases in which the
decision-making procedure will not alter the outcome of governmental action, due
process may nevertheless require that certain procedural protections be granted the
individual in order to protect important dignitary values, or, in other words, „to
ensure that the method of interaction itself is fair in terms of what are perceived as
minimum standards of political accountability—of modes of interaction which
express a collective judgment that human beings are important in their own right,
and that they must be treated with understanding, respect, and even compassion.‟
[Citation.]” (People v. Ramirez (1979) 25 Cal.3d 260, 267-268, italics added.)
Accordingly, the fourth factor plays no role where, as here, due process rights are
asserted by an entity rather than an individual. Consequently, in this case the
starting point for our analysis under the state and federal Constitutions is the same.
The requirements of due process extend to administrative adjudications.
(Withrow v. Larkin, supra, 421 U.S. at p. 46; Morongo Band of Mission Indians v.
State Water Resources Control Bd., supra, 45 Cal.4th at p. 737.) Relevant here,
the bar against financially interested adjudicators applies with as much force to
administrative adjudicators as to judicial officers. (Haas v. County of San
Bernardino, supra, 27 Cal.4th at p. 1027.) In many other respects, however,
administrative hearings need not be conducted with the same rigor demanded of
judicial proceedings: “[D]ue process allows more flexibility in administrative
process than judicial process . . . .” (Ibid.; see Gai v. City of Selma (1998) 68
Cal.App.4th 213, 219 [“The standard of impartiality required at an administrative
hearing is less exacting than that required in a judicial proceeding.”].)
With these principles in mind, we turn to Today‟s Fresh Start‟s due process
claims.
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II. Property Interest
“The first inquiry in every due process challenge is whether the plaintiff has
been deprived of a protected interest in „property‟ or „liberty.‟ [Citations.] Only
after finding the deprivation of a protected interest do we look to see if the State‟s
procedures comport with due process.” (American Mfrs. Mut. Ins. Co. v. Sullivan
(1999) 526 U.S. 40, 59; see also Cleveland Board of Education v. Loudermill,
supra, 470 U.S. at p. 538 & fn. 3.) Today‟s Fresh Start acknowledges it has no
entitlement to issuance of a charter in the first instance, but asserts that, once a
charter has been granted, it has a property interest in continuing operation of its
school. (See California Assn. of Private Special Education Schools v. Department
of Education (2006) 141 Cal.App.4th 360, 372-376.) The County Office, as it has
throughout this litigation, concedes the school has a protected property interest for
due process purposes. We thus assume the existence of such an interest.
“[O]nce it is determined that the Due Process Clause applies, „the question
remains what process is due.‟ ” (Cleveland Board of Education v. Loudermill,
supra, 470 U.S. at p. 541; accord, People v. Allen, supra, 44 Cal.4th at p. 862.)
Today‟s Fresh Start challenges the predeprivation procedures it was afforded in
three respects: (1) the County Board is financially biased; (2) the County Board‟s
reliance on input from the County Office violates separation of function
principles; and (3) the school was afforded inadequate notice of the case against it.
III. Financial Bias and the Guarantee of an Impartial Decision Maker
“When, as here, an administrative agency conducts adjudicative
proceedings, the constitutional guarantee of due process of law requires a fair
tribunal. [Citation.] A fair tribunal is one in which the judge or other decision
maker is free of bias for or against a party.” (Morongo Band of Mission Indians v.
State Water Resources Control Bd., supra, 45 Cal.4th at p. 737.) “Of all the types
of bias that can affect adjudication, pecuniary interest has long received the most
15
unequivocal condemnation and the least forgiving scrutiny.” (Haas v. County of
San Bernardino, supra, 27 Cal.4th at p. 1025.) The state and federal Constitutions
forbid the deprivation of property by a judge with a “ „direct, personal, substantial,
pecuniary interest in reaching a conclusion against‟ ” a party. (Haas, at p. 1025,
quoting Tumey v. Ohio (1927) 273 U.S. 510, 523.)
Today‟s Fresh Start contends the members of the County Board have such a
disqualifying pecuniary interest: (1) the County Office, like other county offices
of education, is authorized to and does operate public schools; (2) because charter
schools like Today‟s Fresh Start necessarily compete with other public schools for
students, and the funding that follows them (see §§ 47612, subd. (a), 47615, subd.
(a), 47630 et seq.; Wells v. One2One Learning Foundation, supra, 39 Cal.4th at
pp. 1203-1204), public school officials have an incentive to revoke charters to
maximize funding available to their own schools; and (3) numerous cases have
recognized that adjudication of one‟s interests by a business competitor with a
conflicting financial interest violates due process.
Though Today‟s Fresh Start makes financial bias a centerpiece of its due
process argument before us, the school concedes it did not raise the issue below.
While that omission would be grounds to consider the issue forfeited, we have
discretion to consider on appeal purely legal issues raised in a petition for review
or answer (Cal. Rules of Court, rule 8.516(b)(1); Goldstein v. Superior Court
(2008) 45 Cal.4th 218, 225, fn. 4), and we do so here. The failure to present the
argument below is not without consequence, however. Because Today‟s Fresh
Start did not develop a record concerning the County Office‟s actual operation of
schools allegedly in competition with the charter school, the school‟s as-applied
challenge is limited to matters we may judicially notice or that the County Office
concedes. Beyond that, the school may present a facial challenge to the statutory
structure established by the Legislature, but must show that county boards of
16
education intrinsically have a financial interest of a kind and magnitude sufficient
to disqualify them from serving in charter revocation hearings as the impartial
adjudicators due process guarantees.
Claims that an adjudicator is biased are not subject to balancing under the
federal Mathews or state Mathews-plus test. (Haas v. County of San Bernardino,
supra, 27 Cal.4th at pp. 1035-1036.)7 Moreover, where the basis for a challenge is
an alleged pecuniary interest, the presumption of impartiality that would otherwise
apply has no place. (Haas, at p. 1026.) Instead, due process is violated whenever
a decision maker has a financial interest that “would offer a possible temptation to
the average person as judge not to hold the balance nice, clear and true.” (Ibid.;
accord, Caperton v. A. T. Massey Coal Co., supra, 556 U.S. at p. 878; Aetna Life
Insurance Co. v. Lavoie (1986) 475 U.S. 813, 825.)8 Conclusive proof of actual
bias is not required; an objective, intolerably high risk of actual bias will suffice.
(Caperton, at pp. 883-884; Haas, at pp. 1032-1034.)
To begin, we note the cases Today‟s Fresh Start principally relies upon are
not strictly analogous because, unlike the circumstances alleged here, they
involved adjudicators who stood to receive a benefit to their personal fisc. (See
Tumey v. Ohio, supra, 273 U.S. at p. 523 [a judge may not preside over a case in
7 As we explained in Haas, Mathews balancing focuses principally on
identifying procedures that will ensure accurate adjudications, while the policies
underlying the guarantee of a disinterested decision maker extend beyond
minimizing the risk of error to ensuring that our legal systems comport with
fundamental notions of justice. “ „In Justice Holmes‟ famous phrase, “even a dog
distinguishes between being stumbled over and being kicked.” ‟ ” (Haas v.
County of San Bernardino, supra, 27 Cal.4th at p. 1036.)
8 The rule against financial interests stops short of zero tolerance; the United
States Supreme Court has recognized that slight pecuniary interests are not
constitutionally cognizable. (Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S.
at pp. 825-826, fn. 3.)
17
which he or she has a “direct, personal, substantial, pecuniary interest” (italics
added)].) In Gibson v. Berryhill (1973) 411 U.S. 564, the United States Supreme
Court found a due process violation where a state‟s optometry board was
comprised of independent optometrists, who were granted authority to conduct
disciplinary hearings of corporate-employed optometrists. License revocation of
corporate optometrists would enhance the business opportunities of independent
optometrists; the optometry board members thus had a personal financial incentive
to impose discipline. (Id. at pp. 578-579.) A line of state cases relied upon by
Today‟s Fresh Start similarly recognizes that an administrative board composed of
members whose personal businesses could benefit from the board‟s rulings
violates due process. (See University Ford Chrysler-Plymouth, Inc. v. New Motor
Vehicle Bd. (1986) 179 Cal.App.3d 796; Nissan Motor Corp. v. New Motor
Vehicle Bd. (1984) 153 Cal.App.3d 109; Chevrolet Motor Division v. New Motor
Vehicle Bd. (1983) 146 Cal.App.3d 533; American Motors Sales Corp. v. New
Motor Vehicle Bd. (1977) 69 Cal.App.3d 983.) Each case found wanting the New
Motor Vehicle Board, a state board charged with, inter alia, resolving motor
vehicle dealer-manufacturer disputes, whose composition must include four new
motor vehicle dealers, but need not include any manufacturer representatives,
among its nine members. (See Veh. Code, §§ 3000, 3001.) In any given dispute,
the courts observed, a dealer might have one of several personal financial
incentives: to rule against a dealer (to stifle competition), in favor of a
manufacturer (to curry favor with an entity that supplied the dealer vehicles), or in
favor of a narrow reading of the circumstances in which a franchise could be
terminated (to minimize the dealer‟s risk of losing its own dealership). (See
18
Chevrolet Motor Division, at p. 537; American Motors Sales Corp., at p. 987.)
Adjudication by decision makers with such personal financial stakes cannot be
reconciled with due process.9 Here, in contrast, Today‟s Fresh Start has identified
no personal financial benefit that might impair the ability of members of the
County Board to act as disinterested decision makers; County Board members are
not personally in competition with charter schools, and their salaries are
unaffected by any decision they might reach in a revocation proceeding.
The due process violation in Tumey v. Ohio, supra, 273 U.S. 510, arose not
only from the “direct pecuniary interest” the mayor had in each case but also from
his institutional interest: the mayor‟s “official motive to convict and to graduate
the fine to help the financial needs of the village.” (Id. at p. 535.) Subsequently,
the United States Supreme Court has confirmed that institutional financial interests
alone, even without any corresponding personal benefit, may compromise due
process. (Ward v. Village of Monroeville (1972) 409 U.S. 57; see also Caperton v.
A. T. Massey Coal Co., supra, 556 U.S. at p. 878; Haas v. County of San
Bernardino, supra, 27 Cal.4th at p. 1028, fn. 14.) In Ward, the Supreme Court
considered whether a village mayor sitting as a judge trying traffic and ordinance
violations and imposing fines that contributed a “ „substantial portion‟ ” of the
village‟s budget had a disqualifying financial interest. (Ward, at p. 59.) It
concluded that, no less than in cases where fines imposed would directly enhance
a judge‟s salary (see Tumey, at pp. 520, 535), this arrangement offered an
impermissible “ „possible temptation‟ ” to partisanship (Ward, at p. 60).
9 The Legislature subsequently acknowledged and rectified the problem by
mandating recusal of the four dealer board members from dealer-manufacturer
disputes. (See Veh. Code, § 3066, subd. (d), as amended by Stats. 1985, ch. 1566,
§ 2, p. 5776.)
19
But even such an institutional interest as that evident in Ward has not been
demonstrated here. In Ward, the mayor-cum-judge had an impermissible
incentive to maximize village revenue—for which he was responsible and from
which his own salary was paid—at the expense of parties for whom he bore no
responsibility. (Ward v. Village of Monroeville, supra, 409 U.S. at p. 60.) Here,
in contrast, charter schools are public schools for academic and funding purposes
(§ 47612, subd. (c); Wells v. One2One Learning Foundation, supra, 39 Cal.4th at
pp. 1200-1201), and Today‟s Fresh Start has pointed to nothing in the statutory
scheme that would create an incentive for the County Board or individual board
members to favor one public school over another in discharging the duty to
promote beneficial educational opportunities for all students in the county.
Today‟s Fresh Start hinges its as-applied argument on proof that the County
Office operates its own schools and that those schools in fact compete with
Today‟s Fresh Start for students and funding. The school is constrained by its
failure to develop the argument below; there is no evidence of this in the record.
While the County Office concedes it operates a few specialized schools aimed
principally at high school students, Today‟s Fresh Start serves only kindergarten
through eighth grade. Today‟s Fresh Start thus has not shown any incentive on the
part of the County Board to disfavor the charter school in preference for schools
operated by the County Office.
To the extent Today‟s Fresh Start‟s argument may be read as a facial
challenge to county boards adjudicating whether to revoke countywide charters,
this argument fails too. The standard for a facial constitutional challenge to a
statute is exacting. It is also the subject of some uncertainty. (Zuckerman v. State
Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 39; Kasler v. Lockyer (2000)
23 Cal.4th 472, 502.) However, as in Zuckerman and Kasler, we need not settle
the precise formulation of the standard because under any of the versions we have
20
articulated the due process claim here would fail. To resolve a facial challenge,
we consider “only the text of the measure itself, not its application to the particular
circumstances” of this case. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069,
1084.) Even under the least onerous phrasings of the test, Today‟s Fresh Start
must show that having county boards adjudicate charter revocations will create
due process problems in at least “ „the generality‟ ” (California Teachers Assn. v.
State of California, supra, 20 Cal.4th at p. 347) or “vast majority” (American
Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 343) of cases (see
Kasler, at p. 502; Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126).
County boards do not operate public schools (see generally §§ 1040-
1047), though they are in some instances the governing boards for schools
operated by county offices of education (e.g., § 52310.5, subd. (c)). In turn, the
schools county offices run are not for the general student population, but instead
offer specialized vocational or technical training or educate specialty groups,
including students who are homeless, on probation, in juvenile halls, or have been
expelled from other schools. (See, e.g., §§ 1981, 48645.2, 48660 et seq., 52300 et
seq.) A private entity can submit a petition to serve this same niche (see
§ 47605.5), but Today‟s Fresh Start did not; instead, it sought and received a
countywide charter to serve the general student population. Such general
countywide charters are designed by the Legislature not to compete with services
provided by county offices of education, but instead to complement them: “[A]
county board of education may also approve a petition for the operation of a
charter school that operates at one or more sites within the geographic boundaries
of the county and that provides instructional services that are not generally
provided by a county office of education.” (§ 47605.6, subd. (a)(1), italics added.)
This provision effectively precludes any competition for students, or the funding
21
that follows them, between countywide charter schools and schools operated by
county offices of education.
Thus, nothing in either the statutory scheme or the record reveals a financial
incentive for the County Board or its individual members to be predisposed in
favor of a school‟s charter revocation. Accordingly, we find no financial bias that
would have deprived Today‟s Fresh Start of an impartial adjudicator.10
IV. Separation of Functions
A. Overlapping Functions and Due Process
Absent a financial interest, adjudicators are presumed impartial. (Withrow
v. Larkin, supra, 421 U.S. at p. 47; Morongo Band of Mission Indians v. State
Water Resources Control Bd., supra, 45 Cal.4th at p. 737.) To show nonfinancial
bias sufficient to violate due process, a party must demonstrate actual bias or
circumstances “ „in which experience teaches that the probability of actual bias on
the part of the judge or decisionmaker is too high to be constitutionally
tolerable.‟ ” (Morongo Band, at p. 737, quoting Withrow, at p. 47.) The test is an
objective one. (Caperton v. A. T. Massey Coal Co., supra, 556 U.S. at p. 883;
People v. Freeman (2010) 47 Cal.4th 993, 1001.) While the “degree or kind of
interest . . . sufficient to disqualify a judge from sitting „cannot be defined with
precision‟ ” (Aetna Life Insurance Co. v. Lavoie, supra, 475 U.S. at p. 822), due
process violations generally are confined to “the exceptional case presenting
extreme facts” (Freeman, at p. 1005). Today‟s Fresh Start contends this is such an
exceptional case because the County Office and its governing board failed to
10 At issue is the constitutionality of section 47607, subdivision (e), as applied
to revocations by county offices of education. We are not presented with, and do
not consider, whether the statute satisfies due process in the far more common
instance where a local school district is the chartering authority.
22
observe minimum constitutionally required separation between adjudicative,
investigatory, and accusatory functions.
The Legislature has vested responsibility for the authorization of charters,
oversight of charter schools, and revocation of charters in unitary administrative
agencies. In the majority of cases, these tasks are handled by individual public
school districts (§ 47605); in the rarer case of countywide charters like the one at
issue here, they are handled by a county office of education and its board
(§§ 47605.5, 47605.6). The chartering authority is charged with monitoring for
charter violations and other statutorily established grounds for revocation, and
determining, after notice and a hearing, whether grounds for revocation exist.
(§§ 47604.32, 47607, subds. (c)-(e).)
Asking an individual administrative agency to assume multiple roles in this
fashion is neither uncommon nor per se unconstitutional. (Withrow v. Larkin,
supra, 421 U.S. at p. 52.) In the search for the optimal allocation of administrative
functions, “[n]o single answer has been reached.” (Id. at p. 51.) Recognizing this,
neither the United States Supreme Court nor we have treated the state or federal
Constitution as a straightjacket limiting legislatures to but one permissible
approach. In particular, the due process clause does not mandate importation of
the adversary trial model into the administrative context in all or even most cases.
(See Mathews v. Eldridge, supra, 424 U.S. at p. 348 [“[D]ifferences in the origin
and function of administrative agencies „preclude wholesale transplantation of the
rules of procedure, trial, and review which have evolved from the history and
experience of courts.‟ ”]; Howitt v. Superior Court (1992) 3 Cal.App.4th 1575,
1581 [“[T]he pure adversary model is not entitled to constitutionally enshrined
exclusivity as the means for resolving disputes in „[t]he incredible variety of
administrative mechanisms [utilized] in this country . . . .‟ ”]; 2 Pierce,
Administrative Law Treatise (5th ed. 2010) Separation of Functions, § 9.9, p. 883
23
[“[T]he strict agency-based separation of functions approach we have chosen in
the criminal justice context is extremely expensive and inefficient,” and is not
automatically the best approach for administrative disputes].)
Instead, a legislature may adopt an administrative procedure in which the
same individual or entity is charged both with developing the facts and rendering a
final decision, and separate adversarial advocates are dispensed with. Rejecting a
separation-of-functions challenge to proceedings in which an administrative law
judge was required both to investigate and to decide, the United States Supreme
Court explained: “Neither are we persuaded by the advocate-judge-multiple-hat
suggestion. It assumes too much and would bring down too many procedures
designed, and working well, for a governmental structure of great and growing
complexity. The social security hearing examiner, furthermore, does not act as
counsel. He acts as an examiner charged with developing the facts.” (Richardson
v. Perales (1971) 402 U.S. 389, 410.) Proceedings of this sort “are inquisitorial
rather than adversarial.” (Sims v. Apfel (2000) 530 U.S. 103, 111.) The federal
Constitution does not prohibit them. (Withrow v. Larkin, supra, 421 U.S. at p. 52
[“ „[t]he case law, both federal and state, generally rejects the idea that the
combination [of] judging [and] investigating functions is a denial of due process
. . . .‟ ”]; see also Howitt v. Superior Court, supra, 3 Cal.App.4th at p. 1581 [“The
mere fact that the decision maker or its staff is a more active participant in the
factfinding process—similar to the judge in European civil law systems—will not
render an administrative procedure unconstitutional.”].)
Even an agency‟s participation in an accusatory portion of administrative
proceedings need not give rise to constitutional concerns. In Withrow v. Larkin,
supra, 421 U.S. 35, the United States Supreme Court considered a due process
challenge to an administrative board authorized to investigate professional
misconduct, issue charges, adjudicate those charges, and impose discipline. The
24
court explained: “It is also very typical for the members of administrative
agencies to receive the results of investigations, to approve the filing of charges or
formal complaints instituting enforcement proceedings, and then to participate in
the ensuing hearings. This mode of procedure . . . does not violate due process of
law.” (Id. at p. 56.) At the extreme, the Supreme Court has countenanced
proceedings where a single individual may act as investigator, prosecutor, and
decision maker. (See Goss v. Lopez (1975) 419 U.S. 565, 581-584.) Thus, the
general rule endorsed by both the United States Supreme Court and this court is
that “[b]y itself, the combination of investigative, prosecutorial, and adjudicatory
functions within a single administrative agency does not create an unacceptable
risk of bias and thus does not violate the due process rights of individuals who are
subjected to agency prosecutions.” (Morongo Band of Mission Indians v. State
Water Resources Control Bd., supra, 45 Cal.4th at p. 737; see Sheldon v. S.E.C.
(11th Cir. 1995) 45 F.3d 1515, 1518 [“ „[I]t is uniformly accepted that many
agencies properly combine the functions of prosecutor, judge and jury.‟ ”].)
To prove a due process violation based on overlapping functions thus
requires something more than proof that an administrative agency has investigated
and accused, and will now adjudicate. “[T]he burden of establishing a
disqualifying interest rests on the party making the assertion.” (Schweiker v.
McClure (1982) 456 U.S. 188, 196.) That party must lay a “specific foundation”
for suspecting prejudice that would render an agency unable to consider fairly the
evidence presented at the adjudicative hearing (Withrow v. Larkin, supra, 421 U.S.
at p. 55); it must come forward with “specific evidence demonstrating actual bias
or a particular combination of circumstances creating an unacceptable risk of bias”
(Morongo Band of Mission Indians v. State Water Resources Control Bd., supra,
45 Cal.4th at p. 741; see Gai v. City of Selma, supra, 68 Cal.App.4th at p. 220 [to
prove bias, a party must present “concrete facts”]). Otherwise, the presumption
25
that agency adjudicators are people of “ „conscience and intellectual discipline,
capable of judging a particular controversy fairly on the basis of its own
circumstances‟ ” will stand unrebutted. (Withrow, at p. 55.)
B. The Evidence of Actual Bias
We consider whether Today‟s Fresh Start has presented “specific evidence”
(Morongo Band of Mission Indians v. State Water Resources Control Bd., supra,
45 Cal.4th at p. 741) that this is the “exceptional case” (People v. Freeman, supra,47 Cal.4th at p. 1005) involving a constitutionally unacceptable risk of actual bias.
Today‟s Fresh Start identifies two points of structural overlap between the County
Office and its governing board, the County Board. Superintendent Robles
recommended revocation based on the County Office‟s investigation; as county
superintendent she was also, by statute, the ex officio secretary and executive
officer of the County Board. (§ 1010.) Additionally, Shari Kim Gale was general
counsel for both the County Office and its governing board. As well, the school
relies on remarks it contends demonstrate the County Board over-relied on staff
and failed to act as a neutral adjudicator. We find no due process violation.
In Griggs v. Board of Trustees (1964) 61 Cal.2d 93, we held that where a
school district‟s superintendent recommended a sanction against a party and
thereafter took no role in the adjudicator‟s decision whether to impose the
recommended sanction, no constitutional difficulties arose. There, a teacher
challenged as a violation of due process the administrative proceedings that led to
her termination. The school district‟s superintendent filed an accusation;
thereafter, the school district‟s board of trustees (of which the superintendent was
the chief executive officer) afforded the teacher a hearing and upheld the
termination. The board of trustees was permitted to presume the superintendent‟s
recommendation was correct—subject to reevaluation in light of the hearing
evidence—and was permitted to conduct the hearing itself without relying on an
26
outside hearing officer. (Id. at pp. 97-98.) The superintendent did not participate
in the deliberations; that separation of functions was sufficient. (Id. at pp. 98-99.)
So too here, Superintendent Robles had a statutory duty to monitor and, if
concerns arose, investigate Today‟s Fresh Start‟s operations. (§ 47604.4,
subd. (a).) Based on that investigation, she ultimately recommended revocation of
Today‟s Fresh Start‟s charter. Notwithstanding her ex officio title as executive
officer of the County Board, she had no role in the board‟s adjudicative processes
and did not participate in the vote on whether to revoke Today‟s Fresh Start‟s
charter. Her actions thus pose no due process problem.
The same is true of the actions of Sheri Kim Gale, general counsel of both
the County Office and the board. Today‟s Fresh Start repeatedly characterizes her
as a prosecutor, but this misstates both the nature of the proceedings and Gale‟s
role. The County Board was charged with considering and weighing the fruits of
the staff investigation and what it showed in favor of and against revocation, as
well as the argument and evidence of Today‟s Fresh Start. Statutorily, the County
Office and County Board had no agenda, no stake in one outcome or the other.
Thus, like many administrative proceedings the United States Supreme Court and
we have previously approved, this was not a classic adversarial hearing, with a
prosecutor and a defendant. There was no prosecutor here. Gale presented no
evidence, examined no witnesses, and made no argument in favor of revocation.
Instead, Gale‟s role was to advise the County Board on its duties in deciding
whether to direct charter revocation, just as she had previously advised County
Office staff as to their powers and responsibilities when conducting an
investigation of Today‟s Fresh Start. In neither capacity was she charged with
being an advocate or an adjudicator.
The four cases Today‟s Fresh Start principally relies upon to establish that
Gale‟s actions violated due process are each inapposite.
27
In Howitt v. Superior Court, supra, 3 Cal.App.4th 1575, the same county
counsel‟s office represented the county against an employee in a grievance
proceeding and was prepared to advise the quasi-independent adjudicatory body
tasked with deciding the grievance. The Court of Appeal concluded this dual role
was permissible, but only if a screening procedure between prosecutors and
advisors was instituted to avoid the specter of “a hearing in which [a single
attorney] representing a county department raises an objection and then excuses
himself from counsel table to consult with the Board members as to whether the
objection should be sustained.” (Id. at p. 1582.) Unlike the county counsel‟s
office in Howitt, Gale was not tasked with defending her agency‟s past actions
before a third party adjudicator she simultaneously advised; rather, she was
advising a unitary agency on the fulfillment of its statutory responsibilities in
overseeing a regulated entity. Neither the United States Supreme Court nor we
have held that due process requires subdivision of that role into separate parts.
Golden Day Schools, Inc. v. State Dept. of Education (2000) 83
Cal.App.4th 695 involved a transparent due process violation: the same person
who initiated the refusal to renew a government contract sat on the appellate panel
that reviewed that administrative action (id. at p. 701) and thus “was in the
position of judging the correctness of his own decision” (id. at p. 710). Of course,
“ „[n]o man is allowed to be a judge in his own cause; because his interest would
certainly bias his judgment, and, not improbably, corrupt his integrity.‟ ”
(Caperton v. A. T. Massey Coal Co., supra, 556 U.S. at p. 876, quoting Madison,
The Federalist No. 10 (Cooke ed. 1961) p. 59; see In re Murchison (1955) 349
U.S. 133, 136.) The proceedings here involved no similar overlap; the County
Board was deciding in the first instance whether to revoke a charter, not reviewing
a decision already reached by one or another of its own board members.
28
In Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th
81, the same legal counsel represented a city in connection with a business permit
denial and then advised the third party hearing officer on administrative appeal
from that denial. This violated due process because the attorney was in a position
to advise on legal rulings and evidentiary objections in the adversarial appeal of an
initial decision he had helped obtain. (Id. at pp. 90-94.) Gale was not involved in
the appeal of a decision she had helped obtain; rather, she was counseling the
County Board, as she had County Office staff, in connection with the same task:
the initial decision whether Today‟s Fresh Start‟s charter should be revoked.
Finally, in Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, the
Court of Appeal followed Howitt v. Superior Court, supra, 3 Cal.App.4th 1575, in
concluding that the same public counsel‟s office can both represent one party in a
contested hearing and advise the third party adjudicator, so long as sufficient
separation is put in place between the advocate and adjudicator. In Quintero, the
plaintiff was discharged from city employment and his discharge was upheld on
appeal by an independent administrative board. Because counsel for the city in the
appeal had an extensive history advising the independent administrative board
adjudicating the appeal of the city‟s decision to dismiss its employee, the Court of
Appeal found a due process violation. (Quintero, at pp. 815-817.) As with
Nightlife Partners, Ltd. v. City of Beverly Hills, supra, 108 Cal.App.4th 81, an
attorney‟s role in the conduct of an appeal conflicted with his earlier role. No
similar appeal is at issue here.
Next, Today‟s Fresh Start cites remarks by one board member, Angie
Papadakis, that allegedly establish the County Board as a whole gave excess
deference to the County Office staff and its recommendations. Referring to a
County Office staff report and three volumes of supporting documentation
concerning Today‟s Fresh Start‟s compliance with its charter and state law,
29
Papadakis indicated she “value[d] the work and the responsibility of the staff that
spent all this time looking—compiling three books of what they discovered, what
they are responsible for, what their job was” and “I did not pile through those three
books, those three—you know, I did not go through those.”
To the extent Today‟s Fresh Start relies on these remarks to assert that
Papadakis, or the board as a whole, simply rubber-stamped the recommendations
of the County Office staff without independently considering all the evidence or
the presentation and arguments of the school, they cannot bear the weight of that
argument. The comments were made at the October 16, 2007, meeting at which
the board first authorized issuance of notice to Today‟s Fresh Start of an intent to
revoke its charter. They preceded by weeks the November 6 public hearing at
which the school presented evidence and argument, the November 20 meeting at
which the board again considered the matter, the December 4 meeting at which the
County Office presented its final report and the school again presented argument,
and the December 11 meeting at which the County Board finally voted on
revocation. The board and its individual members had ample time between
October 16 and December 11 to consider all sides and all the evidence before
reaching their own conclusion.
More generally, reliance on agency staff to investigate a matter does not
disqualify a board or commission from thereafter ruling impartially. In Kloepfer v.
Commission on Judicial Performance (1989) 49 Cal.3d 826, for example, a judge
argued that the Commission on Judicial Performance was tainted because its own
staff had conducted the initial investigation and recommended initiation of
proceedings. We rejected the due process challenge, noting that these facts failed
to demonstrate “actual bias” and the argument was “contrary to existing
authority.” (Id. at p. 833; see, e.g., Withrow v. Larkin, supra, 421 U.S. at p. 54, fn.
20; Griggs v. Board of Trustees, supra, 61 Cal.2d at pp. 97-98; F. T. C. v.
30
Cinderella Career and Finishing Schools, Inc. (D.C. Cir. 1968) 404 F.2d 1308,
1315.) Reliance on staff necessarily implies a degree of confidence in, and
gratitude for, the work individuals perform in accumulating evidence and
developing recommendations. The board member‟s comments demonstrate no
more than that.
Finally, Today‟s Fresh Start points to remarks County Office and County
Board Counsel Gale made at a November 20, 2007, meeting as proof of the
board‟s partiality. In a November 19 letter, Today‟s Fresh Start argued that
County Office staff‟s participation in investigating the school and recommending
revocation violated due process. It further argued that due process forbade any
communication between County Office staff and the County Board concerning the
revocation, and asked the board to “advise staff that they may not communicate,
directly or indirectly, with the Board regarding the revocation.” At the next day‟s
meeting, a board member sought a response from legal counsel. Gale explained
that staff were not acting as adversarial advocates seeking to persuade an
adjudicator, but as advisers to the entity statutorily charged in the first instance
with authorizing and, when necessary, deciding to revoke a school‟s charter and,
accordingly, that ex parte contacts were entirely permissible: “This is your charter
school. [¶] In this matter the superintendent and staff are not the authorizer, and in
our capacity we all advise the board in making this very important decision. It is
not [County Office] staff versus [Today’s Fresh Start]’s staff. The legal burden is
on you, the board of [the County Office], to determine whether there is substantial
evidence to revoke your charter school. [¶] The [Education Code] provides for an
appeal to the State Board of Education, and that is the due process stage. It is at
that stage where there should be no one-sided communications, each side should
have independent counsel. And most important, the adjudicator is the State Board
of Ed[ucation], and it is neutral. In this matter, in this process, you are not
31
neutral. You are the authorizer. [¶] Essentially this is the same process we use to
evaluate new petitions that come to this board. We use literally the same spectrum
of expert—technical expert staff, there is a public hearing, there is a report of staff,
and then there is a recommendation upon which our board votes. [¶] So with all
due respect, we do disagree and still maintain that our process is entirely legal.”
(Italics added.)
Today‟s Fresh Start‟s position, that County Office staff‟s participation in
investigating and offering a recommendation violated due process, was incorrect,
as we have explained. Its position that the staff were advocates, and thus that the
board should be prohibited from communicating with its own staff, was similarly
incorrect. (See Morongo Band of Mission Indians v. State Water Resources
Control Bd., supra, 45 Cal.4th at pp. 738-739 [“ „[s]eparation of functions must be
defined and administered in ways that permit decisionmakers access to needed
staff advice except in cases where the adviser has significant adversarial
involvement in the case under decision.‟ ”].) In context, it is apparent Gale was
arguing not that the County Board was partial, but that its relationship with its own
staff was not that of a neutral adjudicator presiding over an adversarial hearing,
and thus the board was not prohibited from ex parte contacts with staff members,
who were acting as advisors rather than as distinct party-advocates. In that
estimation, she was correct.11
11 Notably, the County Board member Gale was responding to, Leslie Gilbert-
Lurie, then offered her own understanding of the board‟s role and relationship
with staff in light of Gale‟s remarks: “It‟s how I interpret our role. You‟re our
staff, and so it‟s not a matter of our team versus another team. We form the best
opinions we can make based on the information we gather through our own
questions and through the information our staff brings us.” Quite properly, the
County Board did not see its staff‟s role as prosecutorial or even distinct from the
(footnote continued on next page)
32
At its heart, Today‟s Fresh Start‟s argument rests on the notion that
engaging in an administrative investigation and forming opinions based on the
fruits of that investigation yields the sort of extrinsic bias the due process clause
was intended to prohibit. That view has long been repudiated. To choose but one
example, the United States Supreme Court in Trade Comm’n v. Cement Institute
(1948) 333 U.S. 683 considered the constitutionality of the Federal Trade
Commission‟s structure. Charged with preventing unfair methods of competition,
the commission investigated business practices in the cement industry, issued a
complaint, held a formal hearing, and issued a cease and desist order. An industry
trade group challenged the order, arguing that the commission was biased by its
investigation, had prejudged the matter, and could not serve as an impartial
adjudicator. The Supreme Court disagreed. Even assuming that the entire
commission had formed the view, based on its investigation, that the cement
industry was engaged in unlawful price fixing, that view did not prevent members
of the cement industry from producing voluminous evidence, presenting testimony
and argument, and persuading the commission to revise its conclusions. (Id. at
p. 701.) Congress intended to establish a unitary administrative agency whose
members would develop expertise with respect to the industries they oversaw. Its
model was permissible and did not require the commission to disqualify itself
from adjudicating matters it had previously investigated. (Id. at pp. 702-703.)
So too here; the Legislature can charge county superintendents, offices of
education, and their governing boards with oversight of charter schools without
having to outsource adjudication of charter violations and other alleged
(footnote continued from previous page)
board‟s, but as advisorial to a disinterested board charged with arriving at the “best
opinion[]” as to whether revocation was warranted.
33
misfeasance. Combining these functions in a unitary agency offers the advantage
of ensuring familiarity and expertise. (See, e.g., Trade Comm’n v. Cement
Institute, supra, 333 U.S. at p. 702; Blinder, Robinson & Co., Inc. v. S.E.C. (D.C.
Cir. 1988) 837 F.2d 1099, 1107.) That a county office is responsible for
investigating potential violations does not thereafter preclude the county office‟s
governing board from neutrally evaluating the full range of evidence and argument
a given charter school may wish to present at the required public hearing, and
when warranted revising any tentative opinions the county office‟s initial
investigation may have led the board to form.
Considering the record as a whole, we conclude the evidence Today‟s Fresh
Start presents establishes neither actual bias nor an unconstitutional risk of actual
bias.
V. Evidentiary Hearing
Finally, Today‟s Fresh Start contends it was denied statutory rights and due
process because the evidence upon which the County Board rested its ultimate
revocation decision was not formally introduced at the November 6, 2007, public
hearing. It is undisputed the County Office‟s report, recommendation, and
supporting documents were delivered to Today‟s Fresh Start by mid-October, in
advance of the hearing, and that Today‟s Fresh Start had the opportunity to, and
did, present its responsive evidence and argument at the public hearing. The
question is whether section 47607 or constitutional due process requires the
County Office‟s evidence to also have been presented then. We conclude neither
does.
We begin with section 47607 and its text. The statute provides in relevant
part: “No later than 30 days after providing the notice of intent to revoke a
charter, the chartering authority shall hold a public hearing, in the normal course
of business, on the issue of whether evidence exists to revoke the charter.” (Id.,
34
subd. (e).) The hearing required is simply a hearing “in the normal course of
business.” (Ibid.) The statute does not suggest that the boards of county offices of
education, or those of school districts, should turn their regularly scheduled public
meetings into formal evidentiary hearings. Of note, when the Legislature intends
to require a formal evidentiary hearing, it knows how to say so. (See, e.g.,
§§ 8403 [providing for a hearing conducted under the Administrative Procedure
Act, including the evidentiary provisions of Gov. Code, § 11513], 44246 [same],
44944, subd. (a)(1) [same], 44948.5, subd. (d) [same], 87675 [same], 94940
[same].) It did not choose similar language here. Nor does the legislative history,
which we have examined, offer any indication that the Legislature intended, when
requiring a hearing in the normal course of business, to mandate a formal
evidentiary hearing.
We thus turn to the question whether the state or federal Constitutions
themselves required the County Office to formally present evidence at a
prerevocation hearing. There is no presumption in favor of such procedures; the
“judicial model of an evidentiary hearing is neither a required, nor even the most
effective, method of decisionmaking in all circumstances.” (Mathews v. Eldridge,
supra, 424 U.S. at p. 348; see Oberholzer v. Commission on Judicial Performance,
supra, 20 Cal.4th at p. 392 [“[P]rocedural due process does not require a trial-type
hearing in every instance.”].) To the contrary, “[i]n general, „something less‟ than
a full evidentiary hearing is sufficient prior to adverse administrative action.”
(Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 545.)
Pursuant to Mathews v. Eldridge, supra, 424 U.S. 319, we consider
Today‟s Fresh Start‟s argument that the procedures it received were inadequate by
evaluating “the fairness and reliability of the existing pretermination procedures,
and the probable value, if any, of additional procedural safeguards” in light of the
private interest at stake and any countervailing government interests. (Id. at
35
p. 343; accord, California Teachers Assn. v. State of California, supra, 20 Cal.4th
at p. 347.) In other words, what would the proposed additional procedures add to
the fairness and accuracy of the proceedings actually held, and is any such
additional benefit constitutionally necessary in light of the respective interests at
stake?
It is undisputed Today‟s Fresh Start received copies of the roughly 500
pages of materials reflecting the County Office‟s investigation upon which the
County Board relied. The school had notice of the November 6, 2007, public
hearing and had the opportunity to present written materials in advance of the
hearing, as well as arguments from numerous speakers, including counsel, during
the hearing itself. Before the County Board‟s final decision, the school was
afforded the chance to address the County Board and argue against revocation on
numerous other occasions, including at its October 16, November 20, December 4,
and December 11, 2007, board meetings. These proceedings gave Today‟s Fresh
Start both notice of the alleged deficiencies in its operations and numerous
chances to respond, in writing and orally, with evidence and arguments for why its
charter should not be revoked.
Today‟s Fresh Start argues that the County Office should have been
required to make its case at the November 6 public hearing as well because
otherwise the school could not understand the charges against it and rebut the most
material points. But in advance of the hearing, the County Office‟s Corrective
Action Plan identified and gave notice to the school of 53 specific problems with
the school‟s operations on matters ranging from student safety to the
administration of state tests. That notice was sufficient to afford Today‟s Fresh
Start the opportunity to prepare and submit at the hearing a written rebuttal
addressing every alleged problem, whether material or not. Today‟s Fresh Start
was told in detail the ways in which its performance was perceived as wanting;
36
that it sharply disagreed with that assessment does not diminish either the notice it
had or its opportunity to respond.
Today‟s Fresh Start‟s argument that the County Office should have been
required to clarify which shortcomings were most critical is essentially an
argument that staff should have spent more time making the case for revocation,
and that affording the school an unopposed stage to argue its side to the County
Board was a due process violation. (But see Department of Alcoholic Bev.
Control v. Alcoholic Bev. etc. Appeals Bd. (1981) 118 Cal.App.3d 720, 725-726
[rejecting the argument that due process required a unitary agency‟s investigatory
branch to present an argument to its adjudicatory branch so that the party facing a
license deprivation could “present an argument in response thereto”].) What
Today‟s Fresh Start describes as a vice (the failure of anyone to argue against its
position at the November 6 public hearing) could equally be described as a virtue,
allowing the school to present its case without fear of contradiction.
We conclude any increase in the “fairness and reliability” (Mathews v.
Eldridge, supra, 424 U.S. at p. 343) of the proceedings from a formal requirement
that the chartering authority‟s staff present anew at the section 47607, subdivision
(e) public hearing the case for revocation already disclosed to the school would
have been minimal. Admittedly, such a requirement might have focused the
County Board on the most salient points for and against revocation. But the board
was the body ultimately charged with voting for or against revocation, and its
members were capable themselves of raising whatever concerns weighed most
heavily in their minds and affording the school the chance to allay those concerns.
Given that the additional benefit to be gained from the requirement Today‟s
Fresh Start seeks is at best minimal, it matters not that the school‟s interest in
37
avoiding erroneous revocation may well be substantial or the County Office‟s
financial burden of formally presenting evidence anew less than overwhelming.12
Today‟s Fresh Start was given the opportunity to be heard “at a meaningful time
and in a meaningful manner” (Armstrong v. Manzo, supra, 380 U.S. at p. 552);
“the risk of error inherent in the [prerevocation] procedures chosen by the
legislature [was] not so substantial in itself as to require us to depart from the
„ordinary principle‟ that „something less than an evidentiary hearing is sufficient
prior to adverse administrative action‟ ” (Mackey v. Montrym (1979) 443 U.S. 1,
17, quoting Dixon v. Love (1977) 431 U.S. 105, 113).
We are mindful in reaching this conclusion that “ „[l]egislatures and
agencies have significant comparative advantages over courts in identifying and
measuring the many costs and benefits of alternative decisionmaking procedures.
Thus, while it is imperative that courts retain the power to compel agencies to use
decisionmaking procedures that provide a constitutionally adequate level of
protection . . . , judges should be cautious in exercising that power. In the vast
bulk of circumstances, the procedures chosen by the legislature or by the agency
are likely to be based on application of a Mathews-type cost-benefit test by an
institution positioned better than a court to identify and quantify social costs and
benefits.‟ ” (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 288, quoting 2 Davis
12 This is not to say that formal hearings are without cost; presumably, they
impose costs at least marginally greater, in terms of staff and board time and
resources, than the proceedings conducted here. Even small costs become large
when aggregated over many hearings, and “the Government‟s interest, and hence
that of the public, in conserving scarce fiscal and administrative resources is a
factor that must be weighed. At some point the benefit of an additional safeguard
to the individual affected by the administrative action and to society in terms of
increased assurance that the action is just, may be outweighed by the cost.”
(Mathews v. Eldridge, supra, 424 U.S. at p. 348.)
38
& Pierce, Administrative Law Treatise (3d ed. 1994) § 9.5, p. 61.) The
Legislature‟s choices here comport with due process.13
DISPOSITION
For the foregoing reasons, we affirm the Court of Appeal‟s judgment.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
13 English v. City of Long Beach (1950) 35 Cal.2d 155 and La Prade v.
Department of Power & Water (1945) 27 Cal.2d 47, upon which Today‟s Fresh
Start relies, do not suggest a different conclusion. Both cases construed
nonconstitutional rights to a hearing and found those rights violated in
circumstances where a decision was rendered on evidence never disclosed to the
losing party and which the losing party had no opportunity to controvert.
(English, at p. 158; La Prade, at pp. 50-53.) In contrast, section 47607 does not
establish a right to a formal evidentiary hearing; moreover, Today‟s Fresh Start,
unlike the writ petitioners in English and La Prade, had disclosed to it the
evidence the County Office was relying upon and had numerous opportunities, in
writing and in person, to rebut that showing. (See Candlestick Properties, Inc. v.
San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 570
[correctly reading English as confined to circumstances where an administrative
body relies on evidence never disclosed to the affected party]; cf. Cal. Code Regs.,
tit. 5, § 11965, subds. (d)(1), (f)(2), 11968.5.2, subd. (a) [ensuring going forward
that the evidence and grounds for considering revocation will be disclosed to
charter schools in advance of any § 47607 public hearing].)
39
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Today‟s Fresh Start, Inc. v. Los Angeles County Office of Education
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 197 Cal.App.4th 436Rehearing Granted
__________________________________________________________________________________
Opinion No. S195852
Date Filed: July 11, 2013
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: James C. Chalfant
__________________________________________________________________________________
Counsel:
Vibiana M. Andrade, Sung Yon Lee; Greines, Martin, Stein & Richland, Timothy T. Coates and Alison M.
Turner for Defendants and Appellants and for Defendants and Respondents.
Best Best & Krieger, Dina Harris and Megan M. Moore for Riverside County Office of Education and San
Diego County Office of Education as Amici Curiae on behalf of Defendants and Appellants and
Defendants and Respondents.
David Holmquist and Devora Navera Reed for Los Angeles Unified School District as Amicus Curiae on
behalf of Defendants and Appellants and Defendants and Respondents.
Dannis Woliver Kelly, Sue Ann Salmon Evans and William B. Tunick for Education Legal Alliance of the
California School Boards Association as Amicus Curiae on behalf of Defendants and Appellants and
Defendants and Respondents.
Doll Amir & Eley, Michael M. Amir, Mary Tesh Glarum, Lloyd Vu and Hemmy So for Plaintiff and
Respondent and for Plaintiff and Appellant.
Debra J. La Fetra, Damien M. Schiff and Joshua P. Thompson for Pacific Legal Foundation and Options
for Youth as Amici Curiae on behalf of Plaintiff and Respondent and Plaintiff and Appellant.
Ricardo J. Soto, Phillipa L. Altmann, Julie Ashby Umansky; McKenna Long & Aldridge and Charles A.
Bird for California Charter Schools Association as Amicus Curiae on behalf of Plaintiff and Respondent
and Plaintiff and Appellant.
Amy Bisson Holloway, Edmundo R. Aquilar and Todd M. Smith for State Board of Education, California
Department of Education and State Superintendent of Public Instruction Tom Torlakson as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael M. Amir
Doll Amir & Eley
1888 Century Park East, Suite 1850
Los Angeles, CA 90067
(310) 557-9100
Alison M. Turner
Greines, Martin, Stein & Richland
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90036-3697
(310) 859-7811